M/s Kalra & Company v. The Estate Officer, Haryana Urban Development Authority, Gurgaon

This regular second appeal by the plaintiff / appellant is directed against the judgment and decree dated 20.7.2009, passed by the learned Addl. District Judge, Gurgaon, vide which the suit filed by the plaintiff / appellant for declaration with consequential relief of permanent injunction, has been dismissed. The plaintiff / appellant, filed a suit for declaration with a consequential relief of permanent injunction, on the pleadings, that the plaintiff is a registered partnership firm, and Sh. Darshan Kalra is the Managing Partner of the firm, and competent to file this suit. The plaintiff claimed ownership of Shakuntla Cinema situated R.S.A. No. 3852 of 2009 -2- in Sector 4, Urban Estate, Gurgaon, which was constructed by the plaintiff firm on 19.5.1986, thereafter permission to run the cinema, was granted by defendant No.2 on 1.12.1986. The land underneath the cinema along with some portion of land adjacent to the building was purchased by the plaintiff on instalments basis from the defendants. A plot measuring 3463.12 square yards was put to auction for a price of Rs. 26,47,000/-(Rupees twenty six lac and forty seven thousand only) and bid of the plaintiff was accepted. The case of the plaintiff further was, that out of auction amount a sum of Rs. 2,64,700/-(Rupees two lac sixty four thousand and seven hundred only) was deposited in advance as bid money, and thereafter another sum of Rs. 3,97,050/- (Rupees three lac ninety seven thousand and fifty only) was to be paid within 30 days from the date of acceptance of the bid. As per the terms of the auction, the remaining amount was to be paid, either in lump sum without interest within 60 days from the date of issue of allotment letter or in 10 half yearly instalments. The instalments were payable with interest @ 10% per annum. The plaintiff / appellant was delivered the possession of the Cinema on

10.10.1984, but they were also given possession on the plot measuring

3583.33 square yards i.e. 120.21 square yards in excess of area actually agreed to be sold. The case of the plaintiff was, that excess area was not accepted by the plaintiff. The case of the plaintiff, was that defendants were requested to correct the demand raised, so as to enable the plaintiff to make the payment. On account of dispute referred to above, the plaintiff did not make R.S.A. No. 3852 of 2009 -3- the payment of the instalments, which fell due. This resulted in resumption proceedings. The action of the defendants/ respondent was challenged by the plaintiff / appellant by filing a civil suit, which was compromised on

17.10.1994, wherein it was agreed, that the plaintiff / appellant would clear the dues of the defendants, in quarterly instalments with agreed rate of interest. The case of the plaintiff was, that first instalment was to be paid on 1.2.1995, but the plaintiff was not informed about the actual amount of instalment, after calculating it as per agreed rate of interest @ 10% per annum. In spite of number of visits and demands the defendant / respondents slept over the matter. It was the case of the plaintiff, that in the year 1997, the request of the plaintiff to take back the possession of the excess area was accepted, and letter was issued by the defendants on 15.1.1997, to hand over possession of the excess area. Thereafter, a reminder dated 7.2.1997 was sent by the plaintiff enquiring the amount payable, but the same was not replied to. The case of the plaintiff / appellant was, that in spite of number of representations and requests, no information was given about the amount of installments payable. All of a sudden a show cause notice dated

18.12.1997 demanding Rs. 1,69,17,339/-(Rupees one crore sixty nine lac seventeen thousand three hundred and thirty nine only) was received. The plaintiff / appellant replied to the show cause notice, but in spite of the request for calculating the amount, as per the terms of the R.S.A. No. 3852 of 2009 -4- allotment letter, the defendants refused to cooperate and issued letter dated

31.7.1998, directing the plaintiff to deposit a sum of Rs. 1,75,97,059/- 1,69,17,339/-(Rupees one crore seventy five lac ninety seven thousand and fifty nine only) within 45 days, stipulating therein, that on failure to pay, the site was likely to be resumed. This order was challenged. The rate of interest and calculation of amount due was also challenged. The suit was contested, wherein the averments made in the plaint were denied. The stand taken in the written statement was that due to non-payment of instalments, the defendants have resumed the plot in dispute. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the order of resumption of plot and letter dated 31.7.1998 is illegal, arbitrary and not binding on the rights of plaintiff as alleged?OPP

2. Whether the plaintiff has a right to restrain the defendants from taking possession of the site of Shakuntla Cinema as alleged?OPP

3. Whether the civil Court has no jurisdiction to try the present suit in view of Section 50 of HUDA Act?OPD

4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD R.S.A. No. 3852 of 2009 -5-

5. Whether the plaintiff has no locus standi to file the present suit in the present form?OPD

6. Whether the plaintiffs have not come to the Court with clean hands and have suppressed material facts from the Court?OPD

7. Relief.” The suit was decreed by the learned trial Court. The learned lower appellate Court allowed the appeal, and dismissed the suit for want of jurisdiction of the Civil Court to entertain and try the suit. In view of the stand taken by the learned senior counsel for the plaintiff / appellant in this Court, we are not concerned with the findings recorded by the learned Courts below, on any other issue except issue No.3. Though the learned trial Court on issue No.3 had held, that the Civil Court, had the jurisdiction to entertain and try the suit, the finding on issue No.3, stands reversed by the learned lower appellate Court. The suit filed by the plaintiff / appellant was ordered to be dismissed, as not maintainable. At the time of motion hearing, the learned counsel for the appellant contended, that the plaintiff / appellant was willing, to pay the outstanding amount, along with interest at the rate of 18% per annum. In view of this statement of the learned senior counsel for the plaintiff / appellant, notice of motion was issued by this Court and dispossession of the plaintiff / appellant was stayed. R.S.A. No. 3852 of 2009 -6- The learned counsel for the appellant contends, that the outstanding amount along with interest @ 10 % had been paid before approaching this Court, which was not accepted by the respondents. It is admitted by the learned senior counsel for the appellant, that the amount along with interest @ 18% was not deposited, but it was stated, that the plaintiff / appellant was willing to deposit the amount along with 18% interest. The learned senior counsel appearing on behalf of the appellant does not challenge the findings of the learned lower appellate Court holding, that the Civil Court had no jurisdiction to entertain and try the suit. The only contention raised by the learned senior counsel for the appellant is, that in view of the finding on issue No.3 holding, that the Civil Court had no jurisdiction to entertain and try the suit, instead of dismissing the appeal, direction should have been issued to the learned trial Court for returning the plaint, for presentation before appropriate forum in accordance with law. This contention of the learned senior counsel for the appellant is not opposed by the learned counsel appearing on behalf of the respondent. In view of the admission of learned senior counsel for the appellant, that the judgment of the learned lower appellate Court is correct in holding, that the Civil Court had no jurisdiction. This regular second appeal is dismissed. In view of the fact, that the finding on issue No.3, stands affirmed holding, that the Civil Court had no jurisdiction to entertain and try R.S.A. No. 3852 of 2009 -7- the suit, the findings recorded by the learned Courts below on all other issues are set aside, and direction is issued to the learned trial Court to return the plaint to the plaintiff / appellant, for presentation in the appropriate forum in accordance with law. This appeal is dismissed, by holding that the suit filed by the plaintiff / appellant was not competent. No costs.

17.5.2010 'sp' ( VINOD K. SHARMA ) JUDGE