HUDA Vs KEDAR NATH
Bench: ANIL R. DAVE,KURIAN JOSEPH,R.K. AGRAWAL
Case number: C.A. No.-009951-009951 / 2014
Diary number: 11823 / 2010
Advocates: KAMAL MOHAN GUPTA Vs
V. N. RAGHUPATHY
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9951 OF 2014 (Arising out of Special Leave Petition (Civil) No.15445 of 2010)
HUDA & Anr. ... Appellants
Versus
Kedar Nath ... Respondent
J U D G M E N T
ANIL R. DAVE, J.
1. Leave granted.
2. Being aggrieved by the judgment dated 10th December,
2009 in R.S.A. No.790 of 2008 delivered by the High Court of
Punjab & Haryana at Chandigarh, this appeal has been filed by
the original defendant – Haryana Urban Development Authority,
through its Chief Administrator.
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3. The facts giving rise to the present litigation in a nutshell
are as under :-
The present respondent had participated in an auction
conducted by the appellants for disposal of certain booths
situated in Sector 9 at Panchkula and had offered the highest
bid of Rs.4 lakhs for booth no.103 situated in the said sector.
As he was the highest bidder, subject to the conditions of the
auction, he was allotted the said booth vide Memo No.12351
dated 14th September, 1988. The respondent had deposited
Rs.40,000/-, being 10% of the amount of bid, immediately and
thereafter he had further deposited a sum of Rs.60,000/- so as
to make 25% of the total amount offered by him.
4. The balance amount of Rs.3 lakhs was to be paid by the
respondent to the appellant authorities in 10 half yearly
instalments along with interest @ 10% per annum. There was
a condition in the auction sale that in case of default in
payment, the respondent had to pay interest @ 10% per annum
on the unpaid amount and it was also open to the appellant to
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impose further amount of penalty and to resume possession of
the booth.
5. It is an admitted fact that the respondent committed
several irregularities in making payment of the remaining
amount. As he did not pay the remaining instalments, he was
called upon to pay the same along with interest @ 18% per
annum, compounded quarterly. In the aforestated
circumstances, the respondent had filed a suit challenging the
validity of the action of the appellant of charging 18%
compound interest and resumption of the booth.
6. It was mainly contended in the suit filed by the
respondent that it was not open to the appellant to charge 18%
compound interest. According to the respondent, the appellant
could have charged only 10% interest on the delayed payments.
7. After considering relevant evidence, the trial court had
decreed the suit, especially on the ground that it was not open
to the appellant to charge 18% compound interest.
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8. Being aggrieved by the final outcome of the suit, the
appellant had filed first appeal, but the same had been
dismissed.
9. In the aforestated circumstances, the appellant had filed
Regular Second Appeal No.790 of 2008 before the High Court.
10. After considering the facts and submissions made by the
learned counsel, the High Court dismissed the second appeal by
observing that the appellant was entitled to charge only 10%
interest and not 18% interest compounded quarterly, as
demanded by the appellant.
11. The learned counsel appearing for the appellant authority
had submitted that though the respondent had succeeded in
the suit as well as in the first appeal and the second appeal, till
the date of admission of the present appeal, the respondent had
not made payment and it had also been submitted that the
respondent’s bona fides were doubtful.
12. In the aforestated circumstances, so as to see whether
the respondent was in fact interested in retaining the booth in
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question, this Court had passed an order on 17th February,
2014, directing the appellant as well as the respondent to place
on record their calculations with regard to the amount payable
by the respondent on the basis of interest @ 10% per annum on
the unpaid instalments. In pursuance of the aforestated
direction, the appellant had given a statement giving details
about the amount payable by the respondent with 10% interest
on the unpaid instalments. The respondent had been directed
to make the payment from time to time so as to know his bona
fides.
13. Finally, on 5th September, 2014, this Court had passed
an order directing the respondent to pay at least Rs.13 lakhs
before 10th October, 2014 and the said amount was, in fact,
much lesser than the amount which was payable by the
respondent even as per his own statement of accounts.
14. In spite of the aforestated direction, the respondent did
not pay any amount towards the unpaid instalments and
interest thereon.
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15. With the passage of time, value of the property has
increased substantially and it is clear that the respondent is not
inclined to pay the unpaid amount along with interest thereon
even at the rate of 10% per annum, which was agreeable to
him. It is also an admitted fact that without taking any
permission from the concerned authorities, the respondent has
put up construction on the booth in question. In the
aforestated circumstances, it had been submitted by the
learned counsel appearing for the appellant that the impugned
order passed by the High Court is unjust and improper for the
reason that the respondent had not even paid the amount
payable by him, though several opportunities had been given to
him. He had further submitted that as the respondent had not
paid the amount, the appellant had a right to recover
possession of the booth in question but the appellant could not
take possession due to interim orders passed by the Courts
below. He had, therefore, submitted that the impugned
judgment deserves to be quashed and set aside.
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16. On the other hand, the learned counsel appearing for the
respondent had expressed financial difficulties of the
respondent and submitted that he was prepared to make some
payment on account, though it could not be denied by the
learned counsel appearing for the respondent that the appellant
was lawfully entitled to take possession of the booth in question
on account of non-payment of the unpaid instalments and
interest thereon. He had, therefore, submitted that in the
interest of justice, the appeal should be dismissed and some
more time should be granted to the respondent to make the
payment.
17. We have heard the learned counsel for the parties at
length and have considered the facts of the case. After hearing
the concerned counsel and looking at the facts of the case, we
find that it is an admitted fact that the respondent did not
make payment of the unpaid instalments and also that the
appellant has a right to resume possession of the booth in the
event of non-payment of the auction price of the booth. The
auction had taken place in September, 1988. The balance
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amount of Rs.3 lakh was to be paid in ten half-yearly
instalments. Hence, the entire amount ought to have been
paid within five years thereafter i.e. by the end of 1993.
18. Even if we come to a conclusion that the High Court was
right in not permitting the appellant to recover compound
interest @ 18% per annum, it is an admitted fact that the
respondent did not pay interest even @ 10% per annum, to
which he could not have objected.
19. In spite of the fact that the amount was to be paid before
1993, even today in 2014, neither the respondent has paid the
unpaid amount along with interest thereon, nor has he shown
willingness to make the payment when ample opportunities
were given to him by this Court for making payment along with
interest @ 10% per annum on the amount due and payable.
20. The above facts clearly show that the respondent is not
having bona fide intention and is merely trying to remain in
possession without making payment of the bid amount, which
he had agreed to pay. It is not in dispute that the appellant
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authority is entitled to take possession in the event of non-
payment of the entire price of the booth, which the respondent,
as an auction purchaser, had agreed to pay. Thus, the
respondent has been committing default continuously. The
respondent has also put up illegal construction on the
booth/land allotted to him without taking any permission from
the concerned authority.
21. Looking at the fact that the appellant is entitled to
resume possession of the booth on account of non-payment of
the price, but still the respondent is in possession of the same.
22. Though sufficient opportunities were given to the
respondent to make payment of the price, the respondent has
not paid the same. Hence, in our opinion, the Courts below
had become more lenient than necessary towards the
respondent by permitting him to retain possession and make
payment along with 10% interest on the amount due and
payable by him.
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23. Upon looking at the overall facts, in our opinion, it would
not be proper to grant any further accommodation to the
respondent, who has admittedly not paid the amount due and
therefore, we allow the appeal by quashing and setting aside the
orders passed by the courts below. It would be open to the
appellant to take possession of the booth in question in
accordance with law.
24. The appeal is, accordingly, allowed with no order as to
costs.
………..……………….J (ANIL R. DAVE)
………..……………….J (KURIAN JOSEPH)
…..…………………….J (R.K. AGRAWAL)
NEW DELHI; OCTOBER 29, 2014.