MAHESH KUMAR Vs. HARYANA URBAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Mr. Justice R. C. Kathuria, President-This order shall dispose of above mentioned three complaints as common questions of law and facts are involved in all these complaints and as such so argued by the learned Counsel representing the parties.

(2.) In order to focus the controversy involved in these complaints the facts of Complaint Case No.18 of 1999 are that complainants Mahesh Kumar, Satish Kumar, Pawan Kumar and Sanjay Kumar had purchased S. C. O. No.2 located in Sector-5, Mansa Devi Complex, Panchkula in open auction on 15.3.1993 for the price of Rs.13,80,000. They had deposited 10% of the price on 15.3.1993 being the date of auction and the remaining 15% within 30 days of the issuance of the allotment letter bearing Memo No.8760 dated 30.4.1993. As the opposite parties had failed to carry out the development works in the area and to hand over the possession of the site to them, they filed a Civil Writ Petition No.73 of 1994 in the Hon'ble Punjab and Haryana High Court, Chandigarh with a prayer that writ of Mandamus be issued to the opposite parties to deliver the possession of the site immediately after making development in the area or they be restrained from releasing the remaining instalments of the site in question till the possession was delivered and they be allowed to deposit the remaining instalments after possession was delivered to them. During the pendency of the writ petition the complainants also filed Civil Miscellaneous No.1109 of 1995 seeking stay of the payment of instalments till the possession of the site in question was delivered to them after carrying out the development work in the area. The Hon'ble High Court as per order dated 30.3.1995 directed the opposite parties not to recover the instalments from the complainants till they were offered possession of the site in question. Thereafter, the opposite parties offered possession of the site in question to the complainants on 9.1.1996, which according to the stand of the complainants was without making any development and without providing any amenities in order to overreach the order of the Hon'ble High Court dated 30.3.1995. The opposite parties did not provide outlet of rainy water and for that reason during the rainy season basement of the site in question which was under construction was flooded with rainy water causing loss of Rs.75,000 of cement concrete and labour to the complainants. The walls of the basement also fell down. The rainy water had come under the wall of S. C. O. Nos.2, 3 and 4 belonging to the complainant which affected the foundation of S. C. O. No.3 as the Nala was not Pucca. The banks of the Nala fell down during the rainy season which provided opening of the water towards the site. The opposite parties submitted the report dated 28.1.1998 which according to the complainants was not satisfactory. The Hon'ble High Court as per order dated 27.2.1998 passed common order on the Civil Writ Petition No.102 of 1997 titled as 'mahesh Kumar and Others V/s. HUDA' and Civil Writ Petition No.857 of 1998 titled as 'smt. Asha Rani etc. V/s. HUDA and Anr. ' whereby the complainants were asked to deposit the amount due in two instalments, the first instalment was to be paid by them within 15 days from 27.2.1998 and the remaining instalment was to be paid within one month thereafter which was accordingly deposited by them. It is further case of the complainants that despite the deposit of Rs.1,38,000 being 10% of the price of the plot made on 15.3.1993 and Rs.2,07,000 being 15% so as to constitute 25% of the total price of the plot on 27.5.1993, the possession of the plot was not delivered to them which according to them be deemed to have been delivered on 28.1.1998 when the development work was completed. Further, according to the complainants they had deposited a sum of Rs.1,29,375 on 2.11.1993, Rs.1,29,375 on 18.5.1994, Rs.1,29,375 on 31.10.1994 and on that account they had suffered a loss because of non-use of the plot amounting to Rs.97,242, Rs.84,929 and Rs.74,421 at the rate of 18% interest per annum for the above stated period up to 28.1.1998. The complainants had also incurred an expense of Rs.65,000 because the Pucca wall of the site in question had gotten bent and cracks due to the defective drainage system made by the opposite party. It is also alleged by the complainants that the drainage pipe goes up to the end of S. C. O. No.2 and no exit of water after the end of the wall of S. C. O. No.2 had been provided with the result the water had been seeping into the foundation of the building. On these premises the complainant claimed their entitlement to recover Rs.9,86,392 on account of total loss suffered by them due to the lack of service to be provided by the opposite parties. They further claimed interest @ 18% per annum on the aforesaid amount after 28.1.1998 till the date of realisation.

(3.) On notice the opposite party contested the complaint. In the written statement filed they have pleaded that the complaint is not maintainable as the site was purchased for commercial purpose and in open auction and the complainants being not consumers had no right to invoke the jurisdiction of the District Forum. On merits it was stated that the complainants had filed Writ Petition No.73 of 1994 and Miscellaneous Application No.1109 of 1995 before the Hon'ble High Court and thereafter, offer of possession was made on 9.1.1996 after completing the basic development works and thereafter they had obtained the possession of the site and had started making construction on it. At the same time it admitted that the Hon'ble High Court had directed not to recover the instalments from the complainants till the offer of possession was given to the complainants and in case of default in the payment of instalments amount they were liable to make payment along with interest on the defaulted amount till payment. It further claimed the Hon'ble High Court while deciding the Writ Petition No.73 of 1994 on 11.7.1996 had not waived of the interest to be charged on the delayed payment of instalments as per HUDA policy. It was stated that the complainants had filed another Writ Petition No.102 of 1997 on the very same grounds which was disposed of after taking notice of the fact that necessary development works had been carried out and necessary amenities had been provided. It was further stated that the relief for interest @ 18% per annum claimed by the complainants in Civil Writ Petition No.73 of 1994, Manju Devi and Others V/s. HUDA, and in Civil Misc. No.152 of 1996 was not granted by the Hon'ble High Court and as the writ petition was dismissed as per order dated 11.7.1996 it has to be taken that the prayer for grant of the interest claimed by the complainants has been rejected by the Hon'ble High Court. Accordingly, it was maintained that the present complaint is barred by the principle of res judicata and for that reason the complaint deserves to be dismissed.