Court No. - 24
Case :- SECOND APPEAL No. - 305 of 2005 Appellant :- Smt. Indu Vij Respondent :- Kanpur Development Authority Thru' Its Principal Officer Counsel for Appellant :- Amit Saxena
Hon'ble Jayant Banerji,J.
Heard Shri P.N. Saxena, learned Senior Counsel assisted by Shri Amit Saxena, learned counsel for the appellant and Shri Abhinav Krishna Srivastava, learned counsel for the respondent.
The substantial question of law as formulated by the Court on 01 April 2005 is whether the appellant so (sic) deposit the cost of the disputed property on the date of judgement of the trial court or on the date of judgement of appellate court?
This is the plaintiff's appeal challenging the decree of the appellate court, whereby the appellate court below has modified the decree dated 8.5.2001 passed by the trial court and directed the defendant-respondent to calculate the cost of the disputed property on the date of the judgement. The trial court, while declaring the orders dated 23.4.1997 and 1.5.1997 passed by the defendant-respondent cancelling the allotment of the house in favour of the plaintiff-appellant as void and ineffective, had further directed the defendant-respondent to deduct the amount deposited by the plaintiff-appellant as well as the amount on account of the incomplete construction, from the value of the house and further direction was issued to the defendant- respondent to get the balance amount deposited from the plaintiff- appellant within a period of two months and allotment be again made in her favour and, accordingly, the plaintiff-appellant be not illegally evicted by the defendant-respondent or other employee and representatives.
The appellant had filed a suit for declaration being O.S. No. 577 of 1997 seeking a decree of declaration that the orders dated 23.4.1997 and 1.5.1997 or any other order that may be passed in future for cancellation of the allotment order and for re-allotting the premises no. 96 HIG, Ratan Lal Nagar, Kanpur Nagar and evicting the plaintiff from there as void ab initio and not binding on the plaintiff and further relief of a decree of permanent injunction restraining the defendants from dispossessing the plaintiff from whole or any portion of the ground floor of house no. 3-HIG now known 96-HIG, Ratan Lal Nagar, Kanpur Nagar. This suit was contested by the defendant- Kanpur Development Authority. It was the contention of the plaintiff that the disputed house was allotted on 25.2.1992 by the defendant, the payment of which was to be made in 10 years in installments, half of which was deposited by the plaintiff and the balance half was required to be deposited in 24 three-monthly installments. However, since the construction was not complete, the possession was handed over to the plaintiff on 3.6.1995 after assuring them that the value will be reduced in view of the incomplete constructions. It was stated that despite this assurance the value of the house was increased from Rs. 4,36,000/- to Rs. 5,17,556.80 for which a letter dated 24.1.1997 was wrongly issued to the plaintiff who was directed to deposit the balance amount on 10.2.1997 and 10.3.1997, which was completely arbitrary. Since the plaintiff was a school teacher and for arrangement of the amount, she asked for the No Objection Certificate from the defendant for obtaining the loan from LIC Housing Society. However, no steps were taken by the defendant for giving NOC to the plaintiff because of which she could not deposit the balance amount. Thereafter, unilaterally the defendants issued orders dated 23.4.1997 and 1.5.1997 cancelling the allotment of the plaintiff.
The defendant contested the suit stating that the plaintiff was conditionally allotted the disputed house on 2.1.1992 and despite repeated reminders she failed to observe the conditions of allotment and therefore, the letters were issued for cancellation of the allotment of the house of the plaintiff. The trial court framed seven issues. The suit was decreed.
In the appeal filed by the defendant the cancellation of allotment of the property in dispute was sought to be justified. It was stated that despite several letters being sent to the plaintiff, she did not adhere to the conditions of the allotment and therefore, the allotment was cancelled. It was admitted by both the parties that the property was a semi-finished structure. The appellate court below noticed that no notice was given by the defendant to the plaintiff prior to the cancellation of the order of allotment.
In its findings, the court noticed that admittedly the amount of Rs. 5,17,556.80 demanded by the defendant was deposited but belatedly, and that the DW 1- Madan Lal, who was the Senior Clerk with the defendant Kanpur Development Authority had admitted in his testimony that in case the plaintiff deposited the entire amount, she would not be ejected. The appellate court below ordered that on depositing the present cost of the house, the plaintiff shall not be ejected. It is this part of the decree of the appellate court that is assailed by the appellant, that is to say, to the extent it provides that the defendant would be entitled to the cost of the house on the date of the judgement of the appellate court.
It is contented by the learned senior counsel for the appellant that the appellate court has acknowledged that the amount as demanded by the defendant-respondent on 24.01.1997 was paid by the plaintiff-appellant but belatedly. Once the payment was accepted then without there being any demand or pleading of the defendant-respondent for enhancement of the amount payable, or for payment of the value of the property in dispute on the date of judgment, the lower appellate court travelled beyond the pleadings of the parties by directing the defendant-respondent to calculate its cost on the date of judgement and by directing the plaintiff-appellant to pay the remaining amount. On the other hand, the learned counsel for the defendant-respondent has defended the decree of the appellate court below and has stated that the plaintiff-appellant was liable to pay the amount in terms of the judgement.
Admittedly, prior to the institution of the suit, by means of a letter dated 24.1.1997, the defendant had communicated to the plaintiff the value of the house which was Rs. 5,17,556.80. No relief has been claimed by the plaintiff with respect to the amount demanded by the defendant by means of its letter dated 24.1.1997. The trial court in its order had not specified the value of the property in dispute but had directed that the balance amount, after deducting the value of the incomplete constructions and the amount already deposited by the plaintiff would be paid. The appellate court has recorded that admittedly the amount of Rs. 5,17,556.80 was deposited but the amount was deposited late. However, the date of that deposit is not reflected in the pleadings or judgements.
The appeal filed by the defendant came to be partly allowed on 24.2.2005. Thus, the direction of the appellate court for deposit of the remaining amount by the plaintiff after calculating the cost of the disputed property on the date of the judgement by the appellant has to be viewed in the light of the findings recorded by the lower appellate court. In paragraph no. 13 of the lower appellate court's judgement, relying on the admission of the DW1 that the possession was handed over to the plaintiff in September 1996 and since then she is in the possession of the property and that the house was revalued as it was incomplete, it observed that the defendant/appellant had not fulfilled the conditions mentioned in the allotment order. The court below further noticed that the DW1 had admitted in his statement that show cause notice was sent to the plaintiff before the cancellation but it was not served and therefore it was observed that no notice of cancellation of the allotment was served on the plaintiff. It was further observed that as per the evidence, the valuation of the house was reduced by the order of the then Vice Chairman- Shri Deepak Singhal and as per the learned counsel for the appellant, after adjustment the valuation came to Rs. 5,17,556.80.
Having noticed these facts from the record, the observation of the lower appellate court directing the defendant-respondent to calculate the cost of the disputed property on the date of the judgement and the plaintiff-appellant to deposit the remaining amount cannot be countenanced. At the most the defendant respondent would claim any interest due on the amount that was paid by the plaintiff appellant in terms of the decree of the trial court.
Thus the lower appellate court was not justified in directing the defendant-respondent to calculate the cost of the property on the date of the judgement dated 24.02.2005 in view of the judgement and decree of the trial court. Therefore the judgement decree of the lower appellate court is set aside to that extent. Admittedly, the plaintiff-appellant has deposited the amount demanded by the defendant-respondent by means of its letter dated 24.01.1997. The defendant-respondent shall, however, be entitled to demand interest on the delayed payment of the amount as claimed in its letter of 24.01.1997 which amount shall be communicated to the plaintiff-appellant within two months. The plaintiff-appellant shall then make payment of the same within two months thereafter.
In view of the aforesaid, this appeal succeeds and is allowed.
Order Date :- 28.11.2018 A. V. Singh (Jayant Banerji,J.)