IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 11955 of 2006(W) -------------------------- PETITIONER(S): --------------- S.JAMES VINCENT, ADVOCATE C-21, HIG APARTMENTS, GANDHI NAGAR, COCHIN - 20. BY ADV. SRI.P.S.KRISHNA PILLAI SRI.H.VINOD RESPONDENT(S): --------------- THE GREATOR COCHIN DEVELOPMENT AUTHORITY (GCDA) COCHIN - 20, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.K.THANKAPPAN,SC,GCDA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION DATED 9.3.1987 EXT.P2 TRUE COPY OF THE CONDITIONS OF ALLOTMENT. EXT.P3 TRUE COPY OF THE TRANSFER PAPERS DATED 13.4.1987 EXT.P4 TRUE COPY OF THE AGREEMENT DATED 9.4.1987 EXT.P5 TRUE COPY OF THE REPRESENTATION DTED 4.6.1987 EXT.P6 TRUE COPY OF THE REPLY DATED 20.7.1987 EXT.P7 TRUE COPY OF THE LETTER DATED 3.11.1989 EXT.P8 TRUE COPY OF THE RECEIPT DATED 22.12.1989 BY THE RESPONDENT. EXT.P9 TRUE COPY OF THE LETTER DATED 22.6.1992. EXT.P10 TRUE COPY OF THE LETTER DATED 13.7.1993 EXT.P11 TRUE COPY OF THE LETTER DATED 10.5.2005 EXT.P12 TRUE COPY OF THE REPRESENTATION DATED 12.7.2005 EXT.P13 TRUE COPY OF THE LETTER DATED 16.7.2005 EXT.P14 TRUE COPY OF THE REPLY DATED 26.7.2005 EXT.P15 TRUE COPY OF THE LETTER DATED 5.8.2005 EXT.P15(a) TRUE COPY OF THE CALCULATION STATEMENT. EXT.P16 TRUE COPY OF THE REPLY DATED 2.9.2005 EXT.P16(a) TRUE COPY OF THE STATEMENT OF ACCOUNTS. EXT.P17 TRUE COPY OF THE LETTER DATED 16.3.2006 EXT.P18 TRUE COPY OF LETTER NO. 4248/E & R B2/87/GCDA DATED 3.4.1987 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P19 TRUE COPY OF LETTER SENT BY THE PETITIONER TO THE RESPONDENT ON 31.8.1989 WITH THE CERTIFICATE OF POSTING. EXT.P20 TRUE COPY OF THE ORDER DATED 6.2.1992 IN COMPLAINT NO. 34/1990 OF THE STATE CONSUMER COMMISSION. EXT.P21 TRUE COPY OF THE ORDER DATED 22.12.1993 IN FIRST APPEAL NO.220/1992 OF THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI. EXT.P22 TRUE COPY OF NOTICE NO. HIG/C5/92/GCDA/C-21 DATED 8.6.1993 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P23 TRUE COPY OF LETTER SENT BY THE PETITIONER TO THE RESPONDENT UNDER REGISTERED POST A/D ON 13.11.2000 3 EXT.P24 TRUE COPY OF LETTER NO.C2/E & R/HIG/C-21/GN DATED 29.12.2000 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P25 TRUE COPY OF NOTICE ISSUED BY THE PETITIONER TO THE RESPONDENT ON 16.8.2003 EXT.P26 TRUE COPY OF LETTER DATED 30.8.2003 SENT BY THE PETITIONER TO THE RESPONDENT. EXT.P27 TRUE COPY OF JUDGMENT DATED 25.9.2003 IN WPC 29315 OF 2003 OF THIS HON'BLE COURT. EXT.P28 TRUE COPY OF THE RECEIPT NO. 35525 DATED 12.4.2007 ISSUED BY THE GCDA SHOWING REMITTANCE OF RS. 17,899/- BY THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 11955 OF 2006 -------------------------------------------- Dated this the 15th day of July, 2009 JUDGMENT Writ Petition is filed challenging Exts. P15, P15(a) and P17 whereunder the GCDA has given credit for the payments made by the petitioner for the building allotted to him and demanding balance Rs. 1,84,206/- together with future interest. When the WPC was filed, according to the petitioner, there was only outstanding of Rs. 17,891/- and the petitioner requested this Court to permit the petitioner to remit the said amount. According to the respondent the balance outstanding as on 16.3.2006 when Ext.P17 was issued was Rs. 1,84,206/-. Petitioner is admittedly allottee of a building constructed and delivered by the GCDA on down payment of Rs. 2 lakhs and on payment of balance consideration in monthly instalment of Rs. 2943/-. The first instalment was to be paid on expiry of 30 days from the date of giving possession which was on 13.4.1987. Even though respondent has disputed the date of possession as 9.4.1987, I do not think the same will make much of a difference. In any case petitioner made payment of 2 first instalment on 12.5.1987 and it should be taken as the due date for payment of first instalment. However, it is seen from Ext.P15(a) issued by GCDA that petitioner was not regular in payment of instalments, in as much as there were months when no payment was made and in certain months petitioner made payment of two instalments together. The terms of allotment and agreement for sale produced in Court clearly establish beyond doubt that petitioner was liable to pay differential interest and penal interest for belated payment. Even though petitioner paid 168 instalments of the balance consideration, much of the payments got absorbed in interest in terms of sale agreement. Petitioner's contention to accept the payments as full discharge of liability is in effect against the provision for interest which GCDA rightly declined. Therefore petitioner's claim that liability is discharged cannot be accepted and I reject this contention. The balance is only working out of the actual liability. Counsel for the GCDA submitted that Government has waived penal interest of around Rs. 56,000/- and the balance is shown in Ext.P17. After hearing both sides, I find that the dispute is only about the quantum of liability which is a 3 matter of working out by an accountant and not by this Court. Terms of agreement pertaining to rates of payment, default and interest liability, are clear. If petitioner is not satisfied with GCDA account, it is for the petitioner to engage a chartered accountant at his cost to work out the liability along with accountant of the GCDA. I give an opportunity to the petitioner to engage a chartered accountant at his cost, who will work out the liability with the accountant of the GCDA and I am sure there can be no surviving dispute in the working out of the balance liability after giving credit in terms of the agreement. On the other hand, if the petitioner wants to solve the problem once and for all, I feel petitioner can be given an opportunity to pay the balance without any liability for future interest from 16.3.2006 till date of payment, provided petitioner pays balance amount of Rs.1,66,350/- within a period of one month from today. If engaged by the petitioner, Chartered Accountant will work out the interest liability after giving credit for the payments made by the petitioner with reference to the date on which payments were made in co-ordination with the accountant of GCDA. Chartered Accountant is given one month's time 4 to work out the liability and produce it before the GCDA for them to proceed to recover the amount so determined by him with GCDA. However, if liability as on 16.3.2006 is not settled by making payment as above, GCDA will be free to charge interest on the determined amount till date of payment or recovery. W.P.C. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 5