Ved Parkash Kathuria, HUF v. Haryana Urban Development

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. V. K. Jain, Senior Advocate with Mr. Parshant Vashisht, Advocate for the appellant. Mr. Rajesh Sehgal, Advocate for Mr. Manish Bansal, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff Ved Parkash Kathuria, HUF, having remained unsuccessful in both the courts below. Haryana Urban Development Authority (HUDA) – defendant no.1 allotted commercial booth no.79, Sector 9, Faridabad to the plaintiff vide allotment letter dated 14.10.1997, pursuant to open auction, for total consideration of Rs.11,50,000/-. Plaintiff paid 25% thereof within the stipulated period and obtained possession of the booth. Balance amount was to be paid in ten half-yearly instalments. However, the plaintiff did not pay any amount whatsoever thereafter. Defendant no.2 Estate Officer R. S. A. No. 782 of 2008 2 issued notice dated 28.12.1999 under Section 17 (3) of the HUDA Act, 1977 (in short – the Act) requiring the plaintiff to pay Rs.2,88,884/- together with penalty of Rs.26,262/-. Plaintiff's case is that pursuant to the aforesaid notice, the plaintiff appeared before defendant no.2 and prayed that penalty be not imposed and compound interest be not levied, being in contravention of allotment letter. However, defendant no.2 issued another notice dated

17.02.2000, vide which the plaintiff was given opportunity of hearing. Thereafter, defendant no.2 resumed the disputed booth vide Resumption Order dated 12.02.2001. Thereafter, the plaintiff went to defendant no.2, who asked the plaintiff to file appeal against the resumption order. In the suit, the plaintiff alleged that the resumption order as well as the appellate order are null and void. The plaintiff prayed that resumption order dated

12.02.2001 be declared null and void. Permanent injunction was also sought restraining defendants from evicting the plaintiff from suit property. The defendants inter alia pleaded that the plaintiff had remedy to file revision petition to challenge the resumption order and appellate order. It was also pleaded that the plaintiff committed willful default in not paying the balance sale price of disputed booth. Notice dated 28.12.1999 was legally issued requiring the plaintiff to deposit the due amount. It was denied that plaintiff appeared before defendant no.2 pursuant to the said notice or made any request for not imposing penalty or compound interest. It was pleaded the resumption order is legal and valid. Appeal against the resumption order has also been dismissed. Appellate order is also legal and valid. It was pleaded that notices under sub-sections (1), (2), (3) and (4) of Section 17 of the Act were issued to the plaintiff and full opportunity of hearing was given. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 25.08.2006, dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has been dismissed by learned R. S. A. No. 782 of 2008 3 Additional District Judge, Faridabad, vide judgment and decree dated

09.08.2007. Feeling aggrieved, the instant second appeal has been preferred. case file. I have heard learned counsel for the parties and perused the Defendants have placed on record notice dated 28.09.1998 (Ex. D-2) issued under Section 17 (1) of the Act requiring the plaintiff to pay the due amount of instalments and to show cause why penalty to the extent of 10% of the due amount be not imposed. However, the plaintiff did not respond to the said notice. Thereupon, defendant no.2 passed order dated 05.11.1998 (Ex.D-3) under Section 17 (2) of the Act imposing penalty and requiring the plaintiff to pay the due amount along with penalty. The plaintiff did not respond to the said order as well. Thereafter, impugned notice dated 28.12.1999 (Ex.D-4) was issued under Section 17 (3) of the Act requiring the plaintiff to show cause as to why the booth should not be resumed. No response thereto was either filed by the plaintiff. Thereafter, defendant no.2, vide letter dated 17.02.2000 (Ex.D-5), intimated the plaintiff that no reply had been received from him to notice dated

28.12.1999 and requiring the plaintiff to appear for personal hearing on

01.03.2000. However, still, the plaintiff did not respond. Thereafter, impugned resumption order 12.02.2001 was passed. From the aforesaid, it is apparent that due procedure was followed by the Estate Officer (defendant no.2) before passing the resumption order. Admittedly, the plaintiff did not deposit the balance amount of sale consideration after depositing initial amount of 25% of the same consideration. Consequently, defendant no.2 was left with no option, but to pass the impugned resumption order. Jurisdiction of civil court to challenge the resumption order is barred by Section 50 of the Act. Learned counsel for the appellant vehemently contended that the defendants had no right to charge interest @ 18% per annum or to R. S. A. No. 782 of 2008 4 charge compound interest and therefore, the resumption order is vitiated and can be challenged in civil court. The contention cannot be accepted. In the plaint, the plaintiff has not even challenged the right of the defendants to charge interest @ 18% per annum. Consequently, this plea cannot be raised now in the second appeal. As regards compound interest, learned counsel for the respondents contended that only simple interest was demanded from the plaintiff, but he failed to pay the same. Moreover, admittedly, the plaintiff received notice dated 28.12.1999 under Section 17 (3) of the Act and admittedly, the plaintiff did not submit any written reply to the same. Thus, no such plea, as now sought to be raised in the suit or in the instant second appeal, was even raised before defendant no.2. The contention of demand of compound interest is not substantiated because counsel for the respondents states that compound interest was not demanded from the plaintiff. Admittedly, the plaintiff has also not deposited the amount, which was due, even according to his own version. The resumption order, therefore, does not suffer from any illegality and jurisdiction of civil court to challenge the same is also barred. It may be added that in the body of the plaint, the plaintiff pleaded common grounds for assailing resumption order and appellate order, but in the prayer in the plaint, the plaintiff sought relief regarding resumption order only and not regarding the appellate order. Without seeking quashing of appellate order also, the plaintiff-appellant cannot succeed. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. March 17, 2010 monika ( L. N. MITTAL ) JUDGE