RSA No.3759 of 2007 1 In the Punjab and Haryana High Court,at Chandigarh. RSA No. 3759 of 2007 Decided on November 20,2008. The Chief Administrator,HUDA and another -- Appellants vs. M/s. Om Automobiles --Respondent Present: Mr. Dinesh Nagar, Advocate, for the appellants Mr.Kulbhushan Sharma,Advocate, for the respondent. Rakesh Kumar Jain,J: M/S Om Automobilies (plaintiff) filed a suit for declaration with consequential relief of permanent injunction stating that plaintiff is allottee of commercial booth site No.52, Sector 156-A, Part II, Faridabad, for a consideration of Rs. 9 lacs as per letter memo No. 579 dated 10.4.1996. The plaintiff deposited a sum of Rs.90,000/- at the time of fall of hammer of the bid and Rs.1,35,000/- was deposited later-on at the time of issuance of allotment letter. The balance amount of Rs.6,75,000/- was to be deposited in lump-sum without interest within 60 days from the date of issue of allotment letter or in ten half yearly instalments. The possession of the shop in question was to be offered by defendants after completion of development but they failed to provide amenities and facilities like road RSA No.3759 of 2007 2 and sewerage and pavements etc. The plaintiff still deposited the entire amount with interest @ 15% per annum on various dates total amounting to Rs.14,52,000/-. In this manner, the plaintiff has paid Rs. 2,44,110/- more to the defendants. The plaintiff was aggrieved against the action of the defendants of demanding one more instalment of Rs.98,339/- along-with compound interest @ 18%. It was alleged by the plaintiff that the allotment letter does not provide any clause regarding compound interest and since the possession was not delivered by the defendants to the plaintiff of the plot in question nor their site plan was sanctioned as the Supreme Court had restrained the construction within the radius of 5 kilometers, besides the defendants failed to provide civic amenities and delayed the possession for two years, therefore, the defendants were not entitled to charge interest from the plaintiff for the said period. The defendants-Haryana Urban Development Authority (in short,'HUDA') besides, taking preliminary objections averred on merits that as per condition No.6, the possession stood offered immediately after making payment of 15% amount as demanded in condition No.4. All facilities like road, sewerage and pavements etc. were provided at and around the booth in question. The plaintiff was delivered possession as far back as on 6.5.1996 and no communication regarding non-providing of amenities was ever sent to the office of defendant No.2. It was denied that any excess payment has been received by the defendant from the plaintiff and alleged that the amount of instalment of Rs.98,339/- demanded from the plaintiff, along-with interest was not illegal. It was further alleged that clause of interest @ 18% was clearly mentioned on the RSA No.3759 of 2007 3 last page of the letter of allotment and compound interest @ 18% per annum was being charged as per HUDA Policy up to 31.8.2000 in view of the letter of Chief Administrator HUDA dated 22.9.2000 and simple interest @10% per annum is being charged from 1.9.2000. It was further alleged that in terms of the conditions of allotment, in case of non-payment of the amount due and payable by the plaintiff, defendant No.2, as per HUDA Act, has the powers to resume the booth in question. Jurisdiction of the Civil Court was also challenged. On the pleadings of the parties, following issues were framed:- 1.Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendants from recovering the impugned demand of Rs.98,339/-from the plaintiff by coercive method and further restraining the defendants from dispossessing the plaintiff from the property in dispute illegally and forcibly ? OPP 2.If issue No.1 is decided in favour of the plaintiff whether the defendants are entitled to the interest at the rate of 18% per annum, if so that what effect ? OPP 3.Whether suit of the plaintiff is not maintainable ? OPD 4.Whether the plaintiff has no cause of action and locus standi ? OPD 5.Relief: The learned trial Court decided issue No.1 in favour of the plaintiff and issue No.2 partly in favour of the plaintiff. Issue Nos. 3 and 4 RSA No.3759 of 2007 4 were decided against the defendants. Thus, suit of the plaintiff was decreed vide judgment and decree dated 17.1.2006 and the defendants were restrained from adopting any coercive method to recover the impugned demand of Rs.98,339/- as well as from dispossessing the plaintiff except in due course of law. However, one liberty was given to the defendants to issue fresh demand notice to the plaintiff after calculating the interest @ 15% per annum on delayed payment and if after calculation, any amount was found due against the plaintiff, then plaintiff was directed to make the payment after receipt of notice within one month therefrom, failing which defendants were allowed to proceed against the plaintiff in accordance with law. Both the plaintiff and the defendants were aggrieved against the judgment and decree dated 17.1.2006, as such, both filed appeals before the learned first Appellate Court. After considering their respective submissions, the learned first Appellate Court modified the decree of the trial Court to the extent that the defendants shall be at liberty to issue fresh demand notice to the plaintiff after calculating the interest @ 15% per annum except for the period of two years 1998 and 1999, the findings of the trial Court on all the issues were affirmed and both the appeals were dismissed. The learned counsel for the appellants has contended that the learned Courts below have erred in reducing rate of interest from 18% to 15% per annum because the interest @ 18% per annum was being charged as per allotment letter. On the other hand, learned counsel for the respondent/plaintiff has submitted that as per letter of allotment Ex.P-2 RSA No.3759 of 2007 5 (Clause No. 5) contractual rate of interest in the case in hand is 15% per annum which has been admitted in the pleadings by the appellant. It has been held by the learned first Appellate Court that interest @ 18% per annum on delayed payment mentioned on the last page of allotment letter Ex.P-2 is not binding as the same has been written in the ink with hand whereas the remaining conditions are in the printed proforma. It was also held that said interest @ 18% per annum was exorbitant and against the provisions of the Act as no approval of the Government regarding such policy for charging interest @ 18% per annum is proved on the record. It is also pertinent to mention here that the Supreme Court had restrained raising of construction within radius of 5 kilometers from Badkhal for two years i.e. 1998 and 1999 which fact has not been denied specifically by DW-1 Hanuman Singh, Clerk of HUDA in his cross-examination when he showed his ignorance about this fact whereas it is clear from document Ex. D-9 that construction for the said period was stayed . Thus, it has been rightly held that no interest can be charged for the said period of two years. Learned counsel for the appellants has failed to find out any fault with the findings recorded by both the Courts below nor could raised any question of law much-less substantial in the present appeal for the adjudication of this Court. In view of the above, I do not find any merit in the present appeal and the same is dismissed without any order as to costs. November 20,2008 (Rakesh Kumar Jain) RR Judge Refer to Reporter—Yes / No.