RSA No. 350 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 350 of 2008 Date of decision: September 9,2008 Kuldip Singh Sandhu ..Appellant. Versus The Chief Administrator, Haryana Urban Development Authority, Panchkula and another ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Shiv Kumar, Advocate for the appellant. ... Rakesh Kumar Garg,J. The plaintiff has filed the suit for declaration that the resumption order dated 1.4.2001 and order dated 26.6.2001 passed by the respondents are null and void with consequential relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the property in question. The plaintiff was allotted Booth No.88-P, Sector 14, Faridabad vide allotment letter No.1985 dated 30.10.1995 by the defendants/respondents for a sale consideration of Rs.6,40,000/-. Plaintiff deposited a sum of Rs.64,000/- vide receipt No. 59530 dated 28.9.1995 at the time of fall of hammer of bid and a sum of Rs. 71,000/- was deposited on 6.11.1995 vide receipt No.123452 and Rs.25,000/- on 6.11.1995 vide receipt No.123453. The balance amount of Rs.4,80,000/- was to be deposited by the plaintiff in lump sum without interest within sixty days from the date of issue of allotment letter or in ten half yearly installments. It is pleaded that possession of the booth was to be offered immediately after payment of 15 % amount of sale consideration after providing all the civic amenities and facilities like roads, sewerage, electricity and pavements etc. but no such civic amenities were provided by the defendants. It is further pleaded that the plaintiff further paid the amount of RSA No. 350 of 2008 2 Rs.69,930/- on 18.1.1999 vide receipt No.173659 and Rs.69,930/- on 12.3.1999 vide receipt No.176064. Total amount of Rs.2,99,860/- has been paid by the plaintiff towards the booth in question. It is the grievance of the appellant that the defendant No.2, without issuing notice under Sections 17(1), (2) & (3) of H.U.D.A. Act, which are mandatory as per provisions of H.U.D.A. Act and before passing any order in respect of the booth in dispute, resumption order was received by the plaintiff on 11.4.2001. The plaintiff filed an appeal against the order dated 11.4.2001, which was dismissed vide order dated 26.6.2001 without giving an opportunity of hearing. Hence this suit. The suit was contested by the respondents raising preliminary objections inter alia regarding the jurisdiction of Court as barred under Section 50(2) of HUDA Act. On merits, it was stated that all the amenities and facilities were duly provided by the defendant to the plaintiff at the time of offering the possession of Booth in question. It was further submitted that before passing the order of resumption on 11.4.2000, the mandatory notice as per provisions of HUDA Act was issued to the plaintiff. However, the plaintiff did not pay the amount due. Thus, the order of resumption was duly and legally passed against the plaintiff. It was also submitted that proper opportunity of hearing was given to the plaintiff and after hearing the appeal filed by the plaintiff was dismissed. Thus it was submitted that the suit be dismissed. The trial Court after hearing both the parties and going through the evidence on record held that there exists no contravention of the mandatory provisions of the HUDA Act before passing the impugned orders by the respondents. The trial Court also observed that it is an admitted fact that the plaintiff did not deposit the amount of instalments which had become due against him. The trial Court also held that in view of the provisions of Section 50 of the HUDA Act, the jurisdiction of the Civil Court is barred. Thus, the suit of the plaintiff was dismissed. RSA No. 350 of 2008 3 Aggrieved by the said judgment and decree dated 12.6.2007, the plaintiffs filed an appeal which was dismissed vide judgment and decree dated 6.11.2007. While dismissing the appeal, the lower Appellate Court observed as under:- “So far as first point for determination is concerned, I do not find any illegality in the impugned orders Ex.P8 and Ex.P9 because both these orders have been passed after following due procedures provided under the Act and giving due opportunity of fair hearing to the appellant. At the outset, it is the contention of learned counsel for the appellant that no interest more than 10 % per annum could be charged by respondents and that too when there was no developmental activity and possession of suit property was not delivered to the appellant. However, this contention of learned counsel for the appellant is devoid of legal force because as per terms and conditions of allotment letter Ex.P2, respondents could have charged 15 % interest on each ten half yearly instalment as per condition No.5 of the allotment letter Ex.P2. Similarly, respondents were also entitled to recover 18 % simple interest on the delayed payment as per note given in the allotment letter Ex.P2. Therefore, when there was contractual rate of interest agreed between the parties, then now appellant could not back out from the said contract. Similarly, if at all there was no development activity in the area where the suit property was situated and its possession was not delivered to the appellant, then appellant has failed to explain as to how and under which circumstances he had paid two instalments of Rs.69,930/- each vide receipts Ex.P6 and Ex.P7 on 18.1.99 and 12.3.1999 respectively which not only included instalment of Rs.48,000/- each but also included simple interest @ 15 % P.A. As agreed between the parties. Therefore, it can be safely said that possession of the suit property was already RSA No. 350 of 2008 4 delivered to the appellant. It is admitted fact that after 12.3.1999, no instalment has been paid by the appellant, therefore, it can be said that he was a defaulter and later on could not get benefit of his own wrongs and financial indiscipline. Other arguments of learned counsel for the appellant is that no notice under Sections 17(i) to 17(3) of the Act was received by appellant before passing of the resumption order Ex.P8. However, this contention of learned counsel for the appellant is again devoid of legal force because firstly, appellant himself did not appear in the witness box to prove this fact . Secondly, it is clearly mentioned in order Ex.P9 that the said notices under Section 17(i) to 17(3) of the Act were issued to appellant and so proved by DW1 Shri J.C.Bhatia. If at all the notices under Section 17(1) to 17(3) of the Act were not issued in presence of DW1, then it cannot be said that the official record which is a public record is false and frivolous. Apart from it, the appellate order Ex.P9 is a speaking order and has been passed after giving due opportunity of hearing to the appellant. Thus, there is not illegality in it. Feeling aggrieved against the judgment and decrees of the courts below, the plaintiff has filed the instant appeal. Learned counsel for the appellant has vehemently argued that there is a total misreading of facts and evidence by the courts below as the relevant evidence has been ignored which has vitiated effect on the findings. He further argued that the resumption order dated 11.4.2001 and order dated 26.6.2001 dismissing his appeal are violative of the principles of natural justice as the respondent cannot charge penal interest at the rate of 18 % from the appellant in view of the judgment of the Hon'ble Supreme Court of India cited as Roochira Ceramics Versus Haryana Urban Development Authority and others 2001 HRR 97and therefore, the impugned judgment and decrees are liable to be set aside and the suit of the appellant is liable to be decreed as prayed. RSA No. 350 of 2008 5 I have heard learned counsel for the appellant. I find no force in the contentions raised by him. It is an admitted fact that the plaintiff did not deposit the amount of instalments which had become due against him. When the plaintiff himself has committed the default by not depositing the due amount of installment. In my view, the respondents had rightly proceeded against the appellant initially by imposing the penalty of 18 % interest on the delayed payment and later on when the amount was not paid by passing the order of resumption of the suit property vide Ex. P-8. Both the Courts below have recorded a finding that respondents have rightly proceeded in accordance with the provisions of HUDA Act. Thus, no fault can be found in the order of resumption Ex. P-8, which was passed in accordance with the provisions of HUDA Act. There is no dispute that under the terms and conditions of allotment letter, the respondents were competent to charge interest at the rate of 15 % on the instalments due as admittedly, as per the terms and conditions of the allotment letter, the plaintiff was given an option either to pay the balance amount of 75 % in lump sum within 60 days or pay the same in 10 six monthly instalments along with interest at the rate of 15 %. As per the foot note of the allotment letter, the respondents were further competent to charge 18 % interest in case of non payment of the due amount of the installment. These conditions are not disputed by the appellant. The judgment cited by the counsel for the appellant is not applicable on the facts of the case. In that case, an admission was made by the Estate Officer. The order of allotment indicates that in case of default of payment of instalment towards the final price, the interest at the rate of 10 % shall be charged, whereas in the instant case, it cannot be disputed by the appellant that in case of default of payment of instalments, the interest at the rate of 18 % is chargeable. Learned counsel for the appellant was unable to point out any illegality or infirmity in the impugned orders of resumption and the Appellate Authority. “Therefore, it is concluded that respondents were justified to pass the order of resumption of the suit property when appellant himself was a defaulter and did RSA No. 350 of 2008 6 not care to pay any instalment for about two years before passing the impugned order of resumption Ex.P8.” For the reasons recorded above, I find no substantial question of law arises in the present appeal for determination of this Court. No merit. Dismissed. September 9, 2008 (RAKESH KUMAR GARG) nk JUDGE