CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1928 OF 2019 (Arising out of Special Leave Petition (Civil)No.24690 of 2018)

SANJAY SINGH AND ANR.         .…Appellants

VERSUS

CENTRAL HIMALAYAN  LAND DEVELOPMENT CO. LTD.       .…Respondent

J U D G M E N T

Uday Umesh Lalit, J.

Leave granted.

2. This appeal is directed against the judgment and order dated 25.07.2018

passed by the High Court  of  Delhi  at  New Delhi  in Regular  First  Appeal

No.876 of 2016.

3. The appellants had booked a residential plot whereupon a villa was to be

constructed  by the  respondent  in  a  project  called  “Cloud-9 Hill  Town” in

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      2 village Khabrar,  Ramgarh,  District-Nainital,  Uttarakhand.  An agreement  in

that  behalf  was  executed  on  14.04.2004  in  terms  of  which  the  total

consideration  for  the  villa  was  Rs.15,65,000/-  and  the  villa  was  to  be

completed  within 30 months.   Later,  sale  deed in  respect  of  the  plot  was

registered  in  favour  of  the  appellants  on  14.05.2004.  According  to  the

appellants they had secured loan to the tune of Rs.13,30,000/- from a bank

and had paid all the instalments as and when they were due.  On or about

03.10.2007 the appellants received a demand notice for payment of balance

consideration of Rs.5,13,850/- together with interest @ 24%. The amount of

Rs.5,13,850/-was tendered by the appellants on 12.10.2007 but the cheque

was returned by the respondent.  

4. Thereafter,  a  statement  of  accounts  was  prepared  by  the  respondent

which  reflected  outstanding  dues  to  the  tune  of  Rs.5,13,850/-  towards

principal  sum  and  interest  amounting  to  Rs.3,61,460/-,  the  total  being

Rs.8,73,556/-.   Soon  thereafter,  the  respondent  filed  a  Summary  Suit  for

recovery of  said amount of  Rs.8,73,556/-.   The Suit  was registered as CS

No.431/14/2008 on the  file  of  Additional  District  Judge,  Tis  Hazari,  New

Delhi.

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      3 5. A Consumer Complaint was filed by the appellants being CC/110/2008

against  the respondent  submitting that  though the outstanding amount was

tendered by the appellants on 18.10.2007, the respondent refused to accept the

same unless the principal sum was accompanied with interest @ 24% and that

the project was not completed in time as a result of which the appellants were

put to loss.  It was prayed that the respondent be asked to deliver possession

of  villa  along  with  all  the  facilities  and  accept  the  balance  payment  of

Rs.5,13,850/-.   The respondent  contested the claim and submitted that  the

appellants never paid instalments as per schedule; that there was no delay on

part  of  the  respondent;  and,  therefore,  the  respondent  was  justified  in

demanding interest.  

6. The complaint was allowed by District Forum-II, New Delhi by order

dated 29.04.2010 which directed the respondent to deliver the completed villa

to the appellants against the balance payment of Rs.5,13,850/- without any

interest and further directed the respondent to pay compensation to the tune of

Rs.1,00,000/- to the appellants.  The order passed by the District Forum-II is

presently pending appeal before the State Commission, New Delhi.

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      4 7. The  Civil  Suit  filed  by  the  respondent  was  dismissed  by  Additional

District  Judge-15 (Central),  Tis  Hazari  Courts,  Delhi  by his  judgment  and

order  dated  30.07.2014.   The  principal  issue  framed  was  whether  the

respondent was entitled to recovery of Rs.8,73,556/- as alleged?  The case put

up by the respondent was not accepted by the trial court and rejecting all the

contentions of the respondent the suit was dismissed.

8. The respondent being aggrieved filed Regular First Appeal No.876 of

2016 in the High Court with an application to condone the delay of 721 days

in filing said appeal.  The explanation offered in support of condonation of

delay was that the then advocate had not informed the respondent about the

disposal  of  suit;  that the respondent was,  therefore, constrained to lodge a

complaint against said advocate before the Bar Council of Delhi, which was

pending adjudication and that the respondent ought not to suffer on account of

the failure on part of their advocate.   The appeal came up before the High

Court on 16.04.2018. After going into the rival contentions, the High Court

observed:

“Considering the facts and circumstances of this case, as recorded in the previous orders,  where only some part of the total consideration is due and that too the same was  tendered  by  the  Respondents  but  was  not

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      5 accepted by the Appellant Company, it is directed that the balance sale  consideration of  Rs.5,13,850/-,  shall be deposited by the Respondents in this Court within a period of four weeks.  Upon the same being deposited, the Appellant Company shall hand over the possession of the Villa for the peaceful occupation and enjoyment of  the  Respondents.   The  Appellant  Company  shall ensure that the Villa would be in liveable condition and shall be complete in all respects.  

Considering the allegations made against the Company and the status report, which has been handed over by the  police  station  Amar  Colony,  it  is  directed  that  a responsible  person  from  the  management  of  the Appellant Company shall remain present in the Court on the next date of hearing.

The question, as to whether the Appellant Company is entitled to interest due to the alleged delay in payment of the principal sum, shall  be decided at the time of final  hearing of the appeal.   Original status report  is taken on record.

List on 23rd May, 2018 for final hearing.  Trial court record be requisitioned for the next date of hearing.”

9. The matter was, thereafter, taken up by the High Court on 23.05.2018

when it was observed:

“The Respondent is stated to have deposited the money as directed on the last date, with the Registrar General of this Court.  The amount shall be kept in a FDR on automatic renewal mode.  The possession of the villa has  not  yet  been  given  by  the  Appellant.   They undertake  that  the possession of  the  fully  completed

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      6 villa shall be handed over to the Respondents on 15th July, 2018.”

10. As  per  record,  the  amount  of  Rs.5,13,850/-  which  was  stated  to  be

balance payable towards the principal sum, was deposited by the appellants

with the Registry of the High Court.  The amount was, thereafter, converted

into  a  Fixed  Deposit  Receipt  awaiting  final  directions  in  the  matter.

According to the order dated 23.05.2018, it was undertaken by the respondent

that  the  villa  would  be  handed  over  and  the  possession  of  the  villa  was

accordingly handed over to the appellants.

11. Thereafter,  the matter  came up before the High Court  on 25.07.2018.

The  High  Court  accepted  the  explanation  for  condonation  of  delay  and

condoned the delay of 721 days, subject to payment of costs of Rs.20,000/- to

be  made  over  by  the  respondent  to  the  appellants.   The  High  Court  also

observed:-

 “6. The subject suit was a suit for recovery of moneys filed by the appellant/plaintiff.  For the settlement, the appellant/plaintiff was directed to hand over the villa constructed  for  the  benefit  of  the respondents/defendants  pursuant  to  an  interim  order passed  by  a  learned  Single  Judge  of  this  Court  and whereby  respondents  also  deposited  a  sum  of Rs.5,00,000/- in this Court.  There cannot be an interim

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      7 order  in  a  proceeding which is  beyond the  scope of main proceedings.   The subject  suit  since was a suit filed by the plaintiff for recovery of moneys which has been dismissed and the present appeal is against that decree,  by  an  interim  order  the  respondents  cannot receive possession of the disputed flat/villa constructed by  the  appellant  in  Cloud-9,  Hill  Town,  Village Khabrar,  Ram  Garh,  District  Nainital,  Uttarakhand. Therefore, it is ordered that the amount deposited by the respondents in this Court be released back to the respondents along with accrued interest thereon within a period of four weeks from today and simultaneously or  before  the  respondents  will  hand  over  possession back of the subject villa received by the respondents from the appellant  pursuant  to  interim orders  in  this appeal to the appellants.”

The First Appeal was admitted and directed to be listed in due course

as per the year of its seniority.

12. The aforesaid order dated 25.07.2018 is now under challenge.  While

issuing notice, this Court had stayed the operation of said order.  

13. We have perused the record and considered rival submissions advanced

by learned counsel for both the sides.  The following features are clear:-   

a) The balance sum of Rs.5,13,850/- which was supposed to be due

from the appellants was deposited by the appellants.

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      8 b) In terms of  the order  dated  23.05.2018 the amount  so deposited

stands converted into a Fixed Deposit Receipt.

c) In terms of the order dated 23.05.2018 and as undertaken by the

respondent, possession of the villa was made over to the appellants.

14. In the instant case, that the High Court in its order dated 16.04.2018 had

sought  to  bring  about  a  situation  where  the  area  of  controversy  could  be

minimized and at the same time the possession of the villa could be made

over the appellant.  The next order dated 23.05.2018 shows that the appellants

had  deposited  the  sum as  indicated  and  the  possession  was  agreed  to  be

handed over by the respondent by 15.07.2018.  The possession of the villa

was  actually  handed  over.   In  the  circumstances,  the  question  for  our

consideration  is  whether  the  High  Court  was  justified  in  reversing  the

situation.  According to us, the situation having been brought about in terms

of the understanding between the parties as recorded in the earlier orders of

the High Court, there was no reason for the High Court to direct reversal of

the situation.

15. But, what is more striking is that the delay to the tune of 721 days was

condoned by the High Court when there was no satisfactory explanation.   In

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      9 our  view,  there  was  gross  negligence  on  part  of  the  respondent  and  the

explanation offered in support of the prayer for condonation does not appear

to be correct.  This is evident from the fact that no effective steps were taken

to pursue the complaint which was lodged against the then advocate.  In the

petition  for  special  leave,  it  was  asserted  that  the  complaint  against  the

Advocate was not  being proceeded with and the respondent  had remained

absent on the relevant date.  Said assertion was not answered satisfactorily in

the affidavit in reply filed in this Court.  Taking totality of the circumstances,

in our view the delay ought not to have been condoned by the High Court.

We, therefore, accept the submission of the appellants and set aside the order

condoning delay.  Consequently, the First Appeal also stands dismissed.

16. However, considering the developments that have taken place while the

appeal was pending in the High Court, we pass following directions:-

a) The possession of the villa which was handed over to the appellants

in pursuance of the order dated 23.05.2018 shall continue to remain with

the appellants and be taken to be in terms of the Agreement entered into

between the parties.

             CIVIL APPEAL NO. 1928 OF 2019 (@ SLP(C) NO.24690 OF 2018)               SANJAY SINGH AND ANR.  VS.  CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD.

                                      10 b) The  amount  of  Rs.5,13,850/-  deposited  by  the  appellants  in  the

Registry of the High Court which stands converted into a Fixed Deposit

Receipt, upon maturity shall be made over to the respondent along with

interest accrued thereon.

c) The pending appeal before the State Commission shall be

dealt with on its own merits.  

17. With the aforesaid directions this appeal is allowed.  No costs.

..………..…..……..……J.                                                                                        (Uday Umesh Lalit)

...………….……………J.                                             (Ashok Bhushan)

New Delhi, February 21, 2019.