HARYANA URBAN DEVELOPMENT AUTHORITY Vs. R.C. GUPTA

JUDGEMENT

(1.) THE present regular second appeal has been filed by defendants to the suit. R.C.Gupta, plaintiff/respondent, through his general power of attorney Harish Gupta, filed a suit for declaration praying that the order of resumption bearing No. 8891 dated 11.1.2001, passed by appellant/defendant No. 2-Estate Officer, Haryana Urban Development Authority, Sector 12, Faridabad, (hereinafter referred to as "the HUDA") be set aside being null and void. A further prayer for issuance of permanent injunction was also made that the defendants be restrained from interfering in his peaceful possession over the suit property. The plaintiff had pleaded that he was allotted booth No. 65 situated at Sector 8, Faridabad, in an open auction held on 15.11.1991 for a total sale consideration of Rs. 1,43,000. On the fall of hammer, the plaintiff had paid a sum of Rs. 14,300 as 10% of the total sale consideration and another 15% amount i.e. Rs. 21,450 was paid on 26.12.1991. The allotment letter was issued to the plaintiff on 16.11.1991. The remaining amount of total sale consideration was to be paid either in lump sum without any interest within a period of 60 days or in ten half yearly installments with 15% interest. It was further stated that after the payment of 25% of the sale consideration, the plaintiff had applied for delivery of possession of booth site on 26.12.1991. The case set out in the plaint is that the possession of booth was not delivered to the plaintiff. He had addressed several letters. Reliance was placed upon the allotment letter to show that the plaintiff was not liable to pay interest if the possession is not delivered. It was further stated that no development work had taken place in the area in view of letter dated 15.7.1992. A grievance was made that the defendants were not justified to demand penal interest and impose penalty upon the plaintiff without delivering possession of the booth in dispute. It was stated that on 19.3.1995, a letter was received wherein an offer to handover the possession was made to the plaintiff. The plaintiff approached the defendants for handing over the possession but the same was not delivered. Furthermore, the plaintiff was forced to pay a sum of Rs. 20,000 on 19.11.1996, another sum of Rs. 20,000 on 4.2.1997, Rs. 10,000 on 14.3.1997 and Rs. 60,000 on 2.9.1998. Thus, in all, the plaintiff had paid a sum of Rs. 1,45,750 against the original sale consideration of Rs. 1,43,000. The case of plaintiff is that the possession was delivered on 3.9.1998, after a delay of 6 years and 10 months. Reliance was placed upon Clauses 5 and 6 of the allotment letter that interest would be paid only after the offer of possession and furthermore the plaintiff was only to take possession immediately after paying 15% of the sale consideration which was paid on 26.12.1991. It was further stated that wrongly the booth in dispute was resumed on 11.1.2001 and an appeal was filed by the plaintiff against the impugned resumption order. At that time, Rs. 3,20,250 was found outstanding against the plaintiff. The appeal, filed against the resumption order, was also dismissed. Therefore, the suit was filed praying that the appellants/defendants were not justified to raise demand of Rs. 3,20,250 and also charge compound interest and additional interest at the rate of 18% on the delayed instalment.

(2.) UPON notice, the defendants had caused appearance. They raised preliminary objections that in view of Section 50(2) of the Haryana Urban Development Authority Act, 1977, the Civil Court had no jurisdiction to try the suit and the suit filed by the plaintiff is not maintainable as he had an alternative remedy. On merits, the defendants admitted the averments made in the plaint regarding non delivery of possession till 15.7.1992. However, it was stated that the plaintiff had failed to deposit the instalments and furthermore the development work was completed and the plaintiff was informed regarding it vide letter dated 10.2.1993. The possession was offered calling upon the plaintiff to deposit a sum of Rs. 40,560 due in respect of booth in question and only then the possession was to be delivered. It was further stated that instead of depositing the amount, the plaintiff continued to raise a dispute that the defendants could not charge the interest. In paragraph 3 of the written statement, on merits, they denied the averments made by the plaintiff that the defendants had refused to handover the possession. It was further stated that since the amount of Rs. 3,20,250 was due, therefore, the resumption order was passed.

(3.) THE plaintiff examined Harish Gupta, General Power of Attorney, as PW.1, who had tendered into evidence his affidavit Ex.PW.1/A. Thereafter, the plaintiff had closed his evidence. He had also proved documents Ex.P1 to Ex.P12. The defendants examined Kunwar Chand Rawat, Assistant, Office of Estate Officer, HUDA, as DW.1 and proved documents Ex.D1 to Ex.D15.