The Narang House Building ... vs Delhi Administration And Anr.
1988 Latest Caselaw 240 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) PLAINTIFF-SOCIETY has filed this suit seeking injunction against the defendants restraining them for effecting the recovery of Rs. 2,22,627.40 in terms of the impugned demand dated 23rd July, 1976. The case set up in the plaint is that the full amount demanded by the defendants in the year 1971 had been paid to them by the plaintiff and it was so confirmed by the defendants and thereafter nothing remained due. The impugned demand dated 23rd July, 1976 is claimed to be illegal and arbitrary.

(2) Defendants contested this suit and raised various pleas but it has not been specifically pleaded in the written-statements as to what was the basis of the impugned demand dated 23rd July, 1976.

(3) On pleadings of the parties, following issues are framed : (1) Whether the suit has been filed by a duly authorised person ? (2) Whether the suit is liable to be dismissed for want of notice under Section 80 of the Code of Civil Procedure ? (3) Whether the suit has been properly valued for the purpose of court-fee ? (4) Whether the demand of the defendants in respect of a sum of Rs. 2,22,627.40 and their threat to forfeit the lease of the plaintiff are legal ? (5) Relief.

(4) The defendants after filing the written-statements did not appear on any date after 5th March, 1986, although case was listed on various dates of hearing. Plaintiff in support of its case has examined its Secretary P.W. IN.N.Chadha. There was no cross-examination of Public Witness . 1. The evidence was recorded on 5th February, 1987 and 23rd July, 1987. Neither on these dates nor any dates thereafter the defendants have appeared. I have heard the learned counsel for the plaintiff and have gone through the record. My findings on issues are as under :- Issue No. 1 :

(5) EX. P-1 is the resolution passed by the plaintiff's society in its: meeting held on 28th February, 1978 authorising S. Lakhbir Singh Chadha,. its President to appear and represent the society in the suit and sign, verify and attest the plaint and the petition. The suit has been filed, signed and verified by S. Lakhbir Singh Chadha. To same effect is the testimony of P.W. 1. I hold that suit has been filed by a duly authorised person. Accordingly, issue No. 1 is decided in favor of the plaintiff. issue No. 2:

(6) Along with the suit, plaintiff had filed an application (I.A. 1880/78) under Section 80(2) of Code of Civil Procedure for leave to institute this suit without service of notice under Section 80 of the Code. The said application was allowed on 2nd August, 1978. Accordingly, issue No. 2 is decided in favor of the plaintiff and against defendants. issue No. 3 :

(7) During the pendency of the suit plaintiff was directed to make good the deficiency in payment of court-fee. The plaintiff has paid the deficient court-fee. Accordingly, issue No. 3 is decided in plaintiff's favor. Issue No. 4:

(8) The plaintiff's society was asked to deposit a sum of Rs. 1,30,389.60 within a period of one month from receipt of letter dated 11th August, 1971 sent by Delhi Administration to the plaintiff. The demand was in respect of proportionate cost of the land measuring 2.245 acres being the deficiency in the area of community facilities, provided in the lay-out plan of the plaintiff's society. The said letter is Ex. P-3. Public Witness . 1 has stated that the amount of Rs. 1,30,389.60 was deposited by the society with the defendants. It may be noted that the amount mentioned in Ex. P-3 is Rs. 1,30,399.60 but that appears to be a typographical error as the sum total of items (i) and(ii) comes to Rs. 1,30,389.60, as also clear from the subsequent letters of the defendants. The Delhi Administration by their letter dated 10th July, 1972 (Ex. P-5) addressed by it to D.D.A. stated that society has deposited the full amount towards peripheral services and deficiency in community facilities in accordance with the demand raised by the Delhi Administration in the Personal Ledger Account of the Housing Commissioner, Delhi Administration. The D.D.A., defendant No. 2 by their letter dated 21st September, 1972 (Ex. P-6) also confirmed the deposit of the full amount by the society towards the aforesaid charges. After the aforesaid charges had been deposited, perpetual lease-deed was executed in favor of the plaintiff- society in February 1973 and sub-leases were executed in favor of the members of the plaintiff's society later on.

(9) Nearly two years after the aforesaid payment had been made and perpetual lease-deed had been executed, the defendant No. 1 by its letter dated 25th June, 1975 (Ex. P-4) demanded a further sum of Rs. 1,06,984.40. The letter Ex. P-4 records the receipt of payment of Rs. 1,30,389.60 by defendant No. 1. Plaintiff protested against the demand. Defendant No. 1 in supersession of letter dated 25th June, 1975 (Ex. P-4) issued another letter of demand dated 23rd July, 1976, now demanding payment of deficiency charges amounting to Rs. 2,22,627.40. The impugned demand dated 23rd July, 1976 is Ex. P-7. As the payment demanded in the impugned letter Ex. P-7 was not made, defendant No. 1 by letter dated 7th/14th February, 1978 (Ex. P-9) again made demand for the said amount and threatened to take possession in case of default of payment by the society.

(10) At this stage, this suit was tiled by the plaintiff challenging the legality and validity of the impugned demand Ex. P-7. The case of the plaintiff is that the full amount of Rs. 1,30,389.60 as demanded from the society was paid by it to the defendants in the year 1971 and certificates to that effect were also issued by defendant No, I as is apparent from Ex. P-5. Likewise payment of full amount is reflected in the letter of defendant No. 2 in Ex. P-6. The defendants have not shown on what basis impugned demand was made by them from the plaintiff's society. Defendants have also not cross-examined Public Witness , 1 Secretary of the plaintiff-society. The result is that the basis of the demand has not been disclosed either in the written-statement or in the evidence. The plaintiff's society has been successful in proving the illegality of the impugned demand. Onus of showing legality of the demand and legality of threat to forfeit the lease was on defendants. Nothing has been shown by them. Accordingly, I decide issue No. 4 in favor of the plaintiff and against the defendants. Relief:

(11) For reasons aforesaid, I pass a decree of perpetual injunction restraining the defendants, their servants and agents from implementing the impugned demand of Rs. 2,22,627.40 in connection with the land allotted to the plaintiff-society. There will be no order as to costs. The suit is disposed of in the above said terms.