IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 26724 of 2007(F) -------------------------------------- PETITIONER(S): ---------------------- DR.TOJAN CHACKO,THEKKAKARA HOUSE, CHELAKKOTTU KARA, THRISSUR-5. BY MR.P.SANTHALINGAM, SENIOR ADVOCATE ADV. MR.S.SHARAN MR.P.B.AJOY RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR,THRISSUR. 3. THE THRISSUR MUNICIPALITY, THRISSUR, REP. BY ITS SECRETARY. 4. THE THRISSUR URBAN DEVELOPMENT AUTHORITY PATTARIKKAL, THRISSUR-01, REP. BY ITS CHAIRMAN. R1 & R2 BY GOVERNMENT PLEADER MR.V.TEK CHAND R3 & R4 BY ADV. MR.K.B.MOHANDAS,SC,THRISSUR CORPN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26724 of 2007(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LEASE CONDITION FOR THE ALLOTMENT OF SHOP ROOM IN SAKTHAN THAMPURAN NAGAR SHOPPING CENTRE. EXT.P2: COPY OF THE REGISTERED NOTICE NO.A4/3823/95 DATED 09/08/1996 SENT BY TRICHUR URBAN DEVELOPMENT AUTHORITY TO THE PETITIONER. EXT.P3(a): COPY OF THE RECEIPT NO.V DATED 03/08/1996 ISSUED BY TRICHUR URBAN DEVELOPMENT AUTHORITY. EXT.P3(b): COPY OF THE RECEIPT DATED 24/08/1996 ISSUED BY TRICHUR URBAN DEVELOPMENT AUTHORITY. EXT.P4: COPY OF THE LETTER NO.A6/3627/96 DATED 24/09/1996 ISSUED BY TRICHUR URBAN DEVELOPMENT AUTHORITY TO THE PETITIONER. EXT.P5: COPY OF THE LEASE DEED DATED 11/10/96 EXECUTED BETWEEN THE TRICHUR URBAN DEVELOPMENT AUTHORITY AND THE PETITIONER. EXT.P6: COPY OF THE NOTICE NO.A6/3625/96/TUCA DATED 07/03/2003 ISSUED BY TRICHUR AURBAN DEVLOPMENT AUTHORITY. EXT.P7: COPY OF THE STATEMENT FILED BY STANDING CONSEL OF THE 4TH RESPONDENT IN W.P.(C). NO. 20509/03 DATED 06/12/2006 BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P8: COPY OF THE JUDGMENT IN W.P.(C). NO. 20509/03 DATED 07/12/2006 IN THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM EXT.P9: COPY OF THE COMMUNICATION NO.A6/3627/96/TUDA DATED 29/03/2007 ISSUED BY TRICHUR URABAN DEVELOPMENT AUTHORITY TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ P.R.RAMACHANDRA MENON, J. ----------------------------------- W.P.(C).No.26724 of 2007- F ----------------------------------- Dated this the 26th day of March, 2009 J U D G M E N T The petitioner, pursuant to the notification issued by the 3rd respondent - Municipality, participated in the tender for allotment of a shop room and on coming out successful, he was allotted the shop room No.S47, subject to the terms and conditions as stipulated under Ext.P1. 2. According to the petitioner, as per Ext.P1, the petitioner had to effect a non-refundable deposit of Rs.5,02,000/- within the stipulated time which was to carry interest at the rate of 14% per annum. Interest was liable to be paid by the 3rd respondent -Municipality every three months as specified in clause 9 of Ext.P1. The petitioner submits that the entire amount as above was remitted by him as evident from Exts.P2, P3(a) and P3(b) proceedings. This was followed by an agreement executed in between, as required by the 3rd respondent vide Ext.P4 thus leading to Ext.P5 agreement. Case of the petitioner is that, despite the specific terms of the tender/lease conditions fixing W.P.(C).No.26724 of 2007- F 2 the liability on the 3rd respondent to pay interest at the rate of '14%' per annum every quarter, simultaneously fixing the liability on the part of the allottee to pay interest at the rate of '22%' per annum if the allottee committed any default in paying the rent to the Municipality, the 3rd respondent turned to be a chronic defaulter and did not honour the commitment by paying the interest as agreed, on time, which made the petitioner to approach this Court by filing W.P.(C).No.20509/2003. It was disposed of as per Ext.P8 judgment, in the light of Ext.P7 statement filed by the Municipality, directing the Municipality to settle the grievance of the petitioner, particularly in view of the admission of the liability, within the time as specified therein. 3. Pursuant to Ext.P8 verdict, the Executive Committee of the 3rd respondent - Municipality, as per the resolution dated 18.2.2006 decided to release interest to the petitioner, if the petitioner was agreeable to reduce the rate of interest payable on the non-refundable security deposit from '14%' to '7%' and accordingly Ext.P9 notice was issued asking for the willingness of the petitioner, which has been subjected to challenge in the above writ petition. W.P.(C).No.26724 of 2007- F 3 4. No counter affidavit has been filed by the respondent and there is no representation even. Non-filing of the counter affidavit presumably is in view of the admitted facts as borne by Ext.P7 statement filed earlier before this Court which led to disposal of the former case filed by the petitioner vide Ext.P8 judgment. The undisputed facts available before the court show that the liability to pay interest is rather admitted and the reason stated for the delay is the adverse financial constraint which cannot be a justifiable reason to deny the rights of the petitioner. But one important aspect to be noted is that Ext.P5 agreement executed between the Municipality and the petitioner does not show any clause like clause 9 of Ext.P1 lease conditions casting the liability as aforesaid; which however has to be read into the agreement in view of the other relevant proceedings and the admitted facts and figures. Normally, this Court will not be justified in proceeding to decide the rights and liabilities of the parties arising out of a contract in a proceeding under Article 226 of the Constitution of India. However, in view of the proceedings held so far leading to Ext.P8 judgment and Ext.P9 offer to pay interest at the rate 7% per annum, there is no point in driving W.P.(C).No.26724 of 2007- F 4 the petitioner away from this Court, at least without enabling him to enjoy the fruits of the admitted extent of liability. 5. In the above facts and circumstances, the 3rd respondent is directed to pay the entire arrears by way of interest payable to the petitioner at the rate of 7% per annum as specified in Ext.P9 without prejudice to the right of the petitioner to get the rate of 14% stipulated under Ext.P1 by approaching competent civil court in the due course. The admitted amount as aforesaid shall be disbursed to the petitioner within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment before the 3rd respondent so as to enable the said respondent to pursue further steps in this regard. The writ petition is disposed of as above. P.R.RAMACHANDRA MENON, JUDGE. bkn/-