Regular Second Appeal No.628 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 628 of 2009 Date of Decision: August 07, 2009 Estate Officer,Haryana Urban Development Authority,Kurukshetra ...........Appellant Versus Raj Kumar ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Deepak Balyan, Advocate for the appellant. Mr.R.S.Longia,Advocate for the respondent. ** Sabina, J. Plaintiff has filed a suit for declaration with consequential relief of mandatory and permanent injunction. The Additional Civil Judge (Senior Division) Kurukshetra decreed the suit of the plaintiff vide judgment and decree dated 23.4.2007. The defendant filed an appeal which was dismissed vide judgment and decree dated 28.8.2008 with the modification in interest raising it from 8% per annum to 9% per annum by the learned Additional District Judge, Kurkshetra. Hence, the present appeal. The case of the parties, as noticed by the learned District Judge in paras 2 to 4 of its judgment reads as under:- "2.Brief facts of the case, as per averments made in the plaint, are that the plaintiff was allotted S.C. site no.1, Sector 17, Kurukshetra (hereinafter referred to as the plot vide allotment letter no.2042 dated 3.12.1984 for a total sum of Rs.1,82,000/-. Regular Second Appeal No.628 of 2009 2 He had deposited the installments' in time and nothing was due against him. Possession of the plot was to be offered/delivered to him after the work of pavement, sewerage etc. was completed and also after completing demarcation of individual plots as per Clauses 5 & 6 of the allotment letter. He applied for “no due certificate” on 23.1.1991 and in response thereof vide letter no.862 dated 29.1.1991, he was informed by defendant no.4 that possession was delivered to him through letter no.21.9.1987. The assertion of defendant no.4 is false because the demarcation work was pending till 1991, so question of offering possession does not arise. Letter dated 21.9.1987 is fictitious which was never sent to the plaintiff nor received by him and the defendants had made up this letter in order to claim interest and extension fees illegally from the plaintiff. The plaintiff approached the defendants several times to know about the future plan and regarding delivery of possession. When the plaintiff had applied for `no dues certificate' on 23.1.1991, he was asked vide letter dated 29.1.1991 to pay the extension fee at the rate of Rs.30/- per square meter along with interest on the installments' due. The plaintiff had filed an appeal before the Administrator HUDA, Panchkula vide letter dated 23.10.1992 but the order was kept pending though the decision was to be communicated to him till filing of suit. Plaintiff has paid all installments in time but neither the possession was offered nor delivered and,therefore, the defendants are not entitled to charge interest or extension Regular Second Appeal No.628 of 2009 3 fees and the plaintiff is entitled for interest @ Rs.18% per annum on the entire amount deposited with the defendants from the date of deposit till actual delivery of possession. The demand made by letter dated 29.1.1991 is illegal, null and void as no internal services were available at that time and the sewerage lines which were laid down were not operational and were not connected with the main line. No water line was laid down in the year 1987, rather it was laid down in the year 1988-89. The pavements were also not completed till 1996. The demarcation lines were not available due to hanging electric lines which were removed in the end of 1992-93. Defendants were asked several times to withdraw the illegal demand of interest/penalty and levy of extension charges and to pay interest to the plaintiff but to no avail. Hence, this suit. 3.On being given notice, defendants have appeared and contested the suit by filing their joint written statement taking preliminary objections that the plaintiff has no locus standi or cause of action to file the suit and this Court has no jurisdiction in view of section 50 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the Act); that the suit is hopelessly time barred and is not maintainable; that the plot was allotted to the plaintiff through an open auction held on 26.1.1984 and the plaintiff had deposited 10% of the total cost i.e. Rs.1,82,000/- at the spot vide receipt no.79/1942 dated 26.10.1984 allotment letter was issued in his favour and he was to pay installments' and 15% of the amount of plot i.e. Regular Second Appeal No.628 of 2009 4 Rs.27,300/- was deposited by him within time and allotment was issued vide memo no. 2042 dated 3.12.1984. As per condition no.5 of the allotment letter balance amount of Rs.1,36,500/- was to be paid by the plaintiff in eight half yearly installments. Since the possession was offered on 21.9.1987 after completing development work of Sector 17, Kurukshetra, possession interest at the rate of 10% as per Clause 5, has been charged on the balance amount which was outstanding on 21.9.1987. Plaintiff is a heavy defaulter and has failed to pay extension fee since 1989 till date and also failed to pay arrears amounting to Rs.67,429/- and,therefore, the plot is liable to be resumed. Possession was offered vide letter dated 21.9.1987 and he was asked to deposit a sum o Rs.9205/- outstanding upto 12.2.1991 plus Rs.9900/- on account of extension fee, but he failed to get the possession and,therefore, he is liable to pay the total outstanding amount along with interest, over the delayed period and is also liable to pay the extension fees. On merits, it is averred that extension fees was due after two years as per Clause 16 of the allotment letter. The plaintiff was aware of the offer of possession since 21.9.1987 but he has filed the suit on 1.12.1997 which is liable to be dismissed. The sewerage work was allotted to S.L.Monga & Company which was completed on 3.5.1987 and water supply work contract was given to Abdul Mazid Khan, which was completed on 29.8.1985. Pavements were constructed after completion of 80% construction work. The demarcation was Regular Second Appeal No.628 of 2009 5 done and the development work was carried. The work of construction of roads was given to Avtar Singh, Contractor and therefore, entire development work was completed. 4. Replication to the written statement of the defendants was filed controverting all the assertions made in the written statements and reiterating those as set up in the plaint. It is further averred that the Court has the jurisdiction to entertain and try the suit as intricated questions of law and facts are involved therein and the act of the defendant is beyond scope of the jurisdiction, against principles of natural justice and equity. The over hanging electric wires were not removed till 1992. The estimate was prepared on 5.8.1992 by HSEB. Even the demarcation of the site plan was prepared on 9.12.1993 on the basis of which plots of Sector 17 were earmarked and so defendants were not able to give possession in 1987 and question of charging interest on delayed payments does not arise.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether letter dated 21.9.87 of the defendants is illegal, null void and not binding on the rights of the plaintiff? OPP 2. Whether the defendants are not entitled to recover any amount from the plaintiff on the grounds mentioned in the plaint?OPP 3. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for on the grounds mentioned in the plaint?OPP Regular Second Appeal No.628 of 2009 6 4. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for on the grounds mentioned in the plaint?OPP 5. Whether the suit is time barred?OPD 6. Whether the Civil Court has no jurisdiction in view of Section 50 of HUDA Act?OPD 7. Relief.” Learned counsel for the appellant has submitted that the suit of the plaintiff was liable to be dismissed as he had failed to deposit extension charges. Vide letter dated 21.9.1987, plaintiff was asked to take possession of the plot in dispute which was allotted to him on 26.1.1984. However, plaintiff was a defaulter and had failed to pay the extension fee. The Civil Court has no jurisdiction to try the suit in view of Section 50 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as `the Act') as the same was barred by limitation. Learned counsel for the respondent, on the other hand, has submitted that the letter in dispute was never served on the plaintiff. The appellant had failed to make any development in the area and consequently possession of the plot was not handed over to the plaintiff. Plaintiff had filed an appeal before the Administrator HUDA but the same had not been decided and was, ultimately, decided on 15.12.2006 during the pendency of the appeal. Hence, the suit of the plaintiff was not barred by limitation. Admittedly, plaintiff was allotted the plot in an open auction on 26.1.1984. After appreciating the evidence on record, both the Courts below have given a categorical finding of fact that the letter Exhibit D6 was never served upon the plaintiff after completing the development work as Regular Second Appeal No.628 of 2009 7 per clause 5and 6 of allotment letter Exhibit D1. It has been observed that no record had been proved with regard to the completion of development work on the date of offer of possession vide letter Exhibit D6. The said finding of fact arrived at by the courts below cannot be interfered with by this Court in appeal. Plaintiff took possession of the plot in dispute on 19.12.2001 vide letter Exhibit D12 and occupation certificate Exhibit D13 was executed. So far as issues regarding the limitation and the fact that the civil Court had no jurisdiction to try the suit, it is evident from the judgment of the learned Additional District Judge that the same were not pressed before the Appellate Court. Even otherwise, the plaintiff filed an appeal before the Administrator HUDA against the demand letter Exhibit D11 in the year 1992. However, the said appeal was not decided and during the pendency of the appeal, the plaintiff filed the present suit. Ultimately, the appeal in question was decided during the pendency of the suit on 15.12.2006. In these circumstances, learned trial Court had rightly held that the suit of the plaintiff was not barred by limitation. So far as the jurisdiction of the civil Court is concerned, the plaintiff had challenged the arbitrary action of the defendant by raising the demand of extension charges, penalty etc. Hence, the learned trial Court had rightly held that the jurisdiction of the civil Court could not be said to be barred. Learned counsel for the respondent has submitted that the trial Court had allowed interest at the rate of 8% per annum on the amount which was liable to be refunded by the defendant. However, the appellate Court had increased the said rate of interest from 8% to 9%. Lerned counsel has submitted that he had no objection if the rate of interest was reduced Regular Second Appeal No.628 of 2009 8 from 9% to 8% per annum. No substantial question of law arises in this case. Hence, this appeal is dismissed. However, in terms of the statement by the learned counsel for the respondent, the rate of interest is reduced from 9% per annum to 8% per annum. ( Sabina ) Judge Agusut 07, 2009 arya